These appeals involve three CBOE patents directed to automated trading exchange systems. All three patents (all claims) were challenged in covered business method reviews and found by the PTAB to be ineligible under Section 101 (abstract ideas). In addition, two of the same patents (a subset of claims) were challenged in inter partes review proceedings, but in those cases the PTAB sided with the patentee and found the ISE had failed to prove invalidity (either obvious or anticipated).

The CBOE appealed the 101 invalidations, and ISE separately appealed the inter partes review denials. In an odd set of judgments, the Federal Circuit affirmed the PTAB 101 rejections in a Rule 36 Judgment (no opinion issued). At the same time, the Federal Circuit also dismissed the IPR appeal as moot. However, in this second case the court did issue an opinion to explain the mootness following from the original no-opinion judgment. The court writes:

In this appeal, International Securities Exchange, LLC (“ISE”) challenges the determination of the Patent Trial and Appeal Board (the “Board”) in inter partes review proceedings involving U.S. Patent Nos. 7,356,498 (“the ’498 patent”) (IPR2014-00097) and 7,980,457 (“the ’457 patent”) (IPR2014-00098). The Board found that ISE failed to show by a preponderance of the evidence that the challenged claims of the ’498 and ’457 patents are unpatentable as either anticipated, obvious, or both, under 35 U.S.C. § 102(e) and 35 U.S.C. § 103(a). In light of our decision in Chicago Bd. Options Exch., Inc. v. Int’l Secs. Exch., Case Nos. 2015-1728, -1729, and -1730, issued contemporaneously herewith, affirming the Board’s conclusion that both patents address unpatentable subject matter under 35 U.S.C. § 101, we find this companion case moot. We dismiss the appeal and vacate the Board’s decisions.

The Federal Circuit’s use of R.36 No Judgement opinions is on the rise even while wringing its hands over the USPTO’s failure to explain its judgments to institute AIA trials.[3]

Numbered almost 9,000,000…and lurking as a weapon of economic destruction for the next 25 years. The self evident absurdity does little to balm the knowledge that there are hundreds of thousands like it buried like landmines in a benighted former warzone….

It is a method of doing business. There’s zilcho techn0l0gy and to the extent there is anything “inn0vative” that “innovation” is ineligible abstract junk.

It’s no more eligible than putting a sticky star next to a kid’s name on a bulletin board (or any other “content”), wherein you paid for the star using “an electronic payment method” offered by a “third party.”

Junk from top to bottom. It takes about five seconds to see through the crxp but apparently that’s four seconds too long for the PTO or for the genius attorneys employed by Facebook. Who are these people and what is their major malfunction?

Five seconds AND $600,000 via IPR, or $1.5M via litigation, if you are lucky, according to the AIPLA Economic Report on the Survey.

Of course you could get lucky on any early Alice motion, but that’s strictly a crapshoot.

The real point is if Facebook comes calling, you are going to pay them, and that’s that. The FB lawyers know exactly what they are doing and will get ROI from the effort. Meanwhile there is no disincentive whatsoever for the USPTO to not grant junk, and every incentive for them to grant as much junk as they can push out the door, since their revenues depend on the manufacture of as many patents as possible- regardless of quality.

It’s a distorted mess that created the greatest single racket in the history of mankind. Makes the gangsters of prohibition look like penny ante playas.

“The real point is if Facebook comes calling, you are going to pay them, and that’s that. The FB lawyers know exactly what they are doing and will get ROI from the effort. Meanwhile there is no disincentive whatsoever for the USPTO to not grant junk, and every incentive for them to grant as much junk as they can push out the door, since their revenues depend on the manufacture of as many patents as possible- regardless of quality.”

I agree.

In order to fix this issue, Congress needs to put the screws on the PTO so that their budgets, their BONUSes, and everything about that agency is directly tied to their stopping issuing so much business method junk. Assign a special inspector General with plenary power to review the work of the PTO.

Now if examiner bonuses were on the lie for screw ups by their fellows, there might be some insistence on peer review before patents in certain areas are granted.

That raises a good point. I suppose all original examinations should be made inter-partes – just give the public a direct input once the applications are published, and if an objector is overruled and eventually prevails either in court or PTAB, refund to the general fund of all fees.

Its an issue of aligning interests, and right now, as usual, nobody is looking out for the public.

Let’s do it one better, like they do it in Japan. Once the patent application is published, a call is quietly made to the examiner by concerned local citizens representing of course big Japanese businesses and the patent application never gets allowed.

Some think that something similar is going on in USPTO, not only in ex parte examinations but in inter partes reviews, where big companies go in in openly lobby the director concerning pending examinations and reviews.

“In order to fix this issue, Congress needs to put the screws on the PTO so that their budgets, their BONUSes, and everything about that agency is directly tied to their stopping issuing so much business method junk. Assign a special inspector General with plenary power to review the work of the PTO.”

It would be so much easier, and a thousand times more effective, to simply amend the law.

Today is business methods. Yesterday it was DNA. Tomorrow it might be functional claiming. The patent office always seems to have a systematic problem in some regards where it gets way out of step with the law and reality.

Cert denied today to patent tr0ll ParkerVision in its desperate hail mary quest to restore a $173 million jury verdict against Qualcomm that the judge tossed out because the jury was clueless.

Petition was filed on March 1. That was quick. Good riddance.

The question that ParkerVision had asked the Court to review was “whether and under what circumstances an inconsistency in expert testimony permits a court to set aside a jury verdict and grant the losing party judgment as a matter of law.”

Daiichi petitioned for writ of certiorari with the Supreme Court to answer:

“1. Whether the Patent and Trademark Office could properly rely on the limitations period for judicial review in denying administrative review to correct its own acknowledged errors, resulting in the loss of rights guaranteed by Congress.

“2. Whether the limitations period for judicial review of the Patent and Trademark Office’s final agency action is the six-year period made generally applicable by the Administrative Procedure Act, or a 180-day period that Congress established for review of an interim decision.”

MM, on Parkervision, they lost because their infringement expert testified that signal X was created before it reached capacitor’s Y so that Qualcom could not infringe a claim that required that the signal be generated from energy stored on the capacitor.

Parkervision tried all sorts of arguments to overcome this admission, to no avail. Either the expert’s testimony was screwed up, or Parkervision really did not have a case to begin with.

Whose to judge at the appellant level? I would agree that jury verdict for Parkervision was not supported by substantial evidence.

This case on its face does not seem like it presents a issue of law. The Feds twice, panel, an petition for rehearing, marked their decisions non presidential.

The Supreme Court saw it the same way. However, I would not say that Parkervision is or was a troll.

The first opinion affirmed the tanking of patent tr0ll EveryMD LLC’s patents in an IPR. The oral arguments were last Wednesday (haven’t listened to them yet but I’m sure they were fun because EveryMD’s claims are super junky and the company is incredibly whiny).

1. A method for providing e-mail communications between a sender and a recipient by a first computer system comprising the steps of:

said first computer system creating a first created e-mail address for a recipient;

said first computer system receiving an incoming first e-mail message from a sending entity other than said first computer system comprising a first existing e-mail address of a sender addressed to said first created e-mail address of said recipient;

said first computer system creating a second created e-mail address for said sender different from said first existing e-mail address and from said first created e-mail address;

said first computer system creating a first modified e-mail message by replacing said first existing e-mail address in said incoming first e-mail message with said second created e-mail address;

said first computer system delivering said first modified e-mail message to said recipient;

wherein said step of said first computer system delivering said first modified e-mail message to said recipient comprises said first computer system sending said first modified e-mail message to a second existing e-mail address of said recipient different from said first created e-mail address of said recipient.

Super techn0 stuff! Whoohoo! Wow. Like rocket science … except there’s no rocket and no science. It’s as if nobody communicated stuff in the prior art before using intermediaries, or as if the patentee’s were born yesterday or were too ign0rant to do some basic research. So sad. Let’s all shed a great big tear for EveryMD. Boo hoo. Hoo.

and provide a useful description of how patent tr0lls operate before the PTAB. The CAFC definitely does not enjoy wasting its time with absolute hackery and briefs that say nothing. It’s unfortunate that so many of these inept tr0lling cases result in Rule 36 opinions (against them) because folks who don’t keep up are missing out on descriptions of the w0rst b0ttom-feeding ventures out there.

I was reading it through to try to figure out if this was an improvement in computer data processing, but instead concluded that it was a modified e-mail method directed to swapping e-mail addresses at an e-mail server. There really is no improvement to anything physical that I can see.

Do you agree that claims like this one should be invalidated under 101?

Do you agree that claims like this one should be invalidated under 101?

Yes. Contacting people using intermediaries is as old as human civilization and this method is nothing more than “do it with a computer as applied to pre-existing methods of communicating on a network.” Piles of lawyerly scrivening layered on such an incredibly basic concept changes nothing.

But you know if you really wanted to you could clench your eyes super tightly shut and pretend that it is addressing a problem “unique to computer communications.” People make equally frivolous arguments all the time and they aren’t sanctioned for it (but they should be).

If they’ve been doing this for years, why does 101 come into the picture? That’s one of the many problems with Alice — it makes 101 an issue for things that logically should be handled under 102/103. It’s really quite confusing and makes no sense.

And I’ve defined “techn0l0gical” in a non-circular manner many times, including as recently as a couple weeks ago.

Anytime Greg wants to step up and defend the worst junk ever patented in the history of any patent system on earth, he’s welcome to come here and do that. As I recall, the last time he showed up here he mewled some nonsense about 103 “taking care of everything”, thereby revealing his complete ignorance of the issues.

Using logic or math to calculate a price or decide what to shove in a person’s face isn’t techn0l0gy and only a patent-worshipping hack would pretend that the use of logic and math for that purpose is a recent development. Unfortunately, as we’re all very well aware, there is no shortage of patent-worshipping hacks out there. They’re like zombies, except less intelligent and not as conscientious.

Except that I did — and I have — many, many times. Doubling down on the l i e s is a really poor strategy on your part, “anon.” And quite frankly engaging in discussions with you is almost always pointless except for the laughs at your expense. Pretty much everybody knows that.

“using logic or math” – great – you just described engineering.

That’s nice. In fact, logic and math are fundamental tools used in all kinds of human activities — even in religious activities where they certainly aren’t necessary.

Again: basic stuff that most eighth graders know.

The use of logic and/or math in an endeavor does not turn the endeavor into “technology”. And calling any endeavor that uses logic and/or math “engineering” is a rather silly and transparent means of turning that endeavor into some sort of “science” that must be recognized by the patent system. But such are the games that lawyers love to play.

Now if you’ll excuse me I need to “engineer” my lunch. After that I’ll use my degree in Entertainmentology to “scientifically” figure out what I should watch. Or mabye I’ll pay somebody to figure that out for me using a super awesome “algorithm”! After all, that’s what The Most Important Ever think is best for everybody.

“Long story short, they defined “technology” as does the vast majority of science, engineering, and philosophy of science/engineering does – TECHNOLOGY IS APPLIED SCIENCE.

But attackers of business method patents can’t use this definition, because to do so is to explicitly make large domains of business patentable because they are applied methods from the various sciences”

BNA has an article on more incompetent discussions about 101 and Alice and “technological”. At a recent IPO meeting (a priori, nothing will be accomplished), IBM’s Manny Schecter complained loudly about the idiocy of Alice: “We can debate the how, but something has to change.” Yeah Manny, use IBM’s resources to lead an effort to delete 101. Google’s lawyer, Laura Sheridan, demonstrating a gross ignorance of the basics of patent law, argued that Alice was an “important correction” of overly broad, ambiguous patents. Hey Laura, “overly broad” are 102/103 concerns, and “ambiguous” are 112 concerns, which have no place in a 101 discussion, despite the unethical unconstitutional fusion of 101/102/103/112 by Judgey Thomas in Alice. Sheridan’s solution, borrowed from the Pam Samuelson school of unethical legal advice (see below) – have a test to see if there is a “technical solution to a technical problem” – COMPLETELY MEANINGLESS WITHOUT A DEFINITION OF “TECHNICAL”, which I argued 14 years ago to insult the EPO’s Pension Benefits barf-indecision. To make sure nothing was accomplished, the PTO’s Drew Hirshfeld stated the trite and offered no leadership (but at least smacked down Sheridan’s/Samuelson’s nonsense): “But courts have not given us a technological test. If we [use that test], we will be creating more uncertainty.”

That is well written. Just look at what Google has done with copyright law and books. Google is a monopoly and they are going to do everything they can to keep it that way. Their game is you invent it and we will incorporate it into our platform. Microsoft in the 1990’s.

I cannot have even a smidgeon of respect for anyone that defends Alice on the grounds that it in anyway is Constitutional or consistent with patent law. What the mighty ossified m@rons might want to consider is that by legislating on their bench, they are enablers. They are encouraging the legislators not to take responsibility. Let’s face it–the eight are no better than Donald Trump. I would rather have Donald Trump as a justice than any of f1lth that is on the bench now. They have no integrity, morals, or ethics. Just f1lth.

MM, IBM wobbles between pro-patent or pro-infringer positions depending on the times and perhaps the issue. They seem at war with themselves at times.

Google is solidly on “we do not want to be bothered by patents” side of the fence. Way on that side. Now, what they might say at times might be sensible, are extremists, people so biased that they cannot be trusted.

Google is also on the “we don’t want to be bothered by copyright laws, privacy laws, basically any laws that get in the way of maximizing our profits and controlling everything and anything we want to control.”

Completely meaningless without a definition of “completely”, “meaningless”, “without” and “definition”!!

Yes, folks, the deep thinkers are having a sad. But we all have to listen to them because they don’t understand anything (patent lawz is teh hard!) and well, it’s frustrating being rich and not getting everything you want all the time.

“On the other hand, practitioners (i.e., people spending their own money within the patent system, something most flaw professors never do despite suggesting inane solutions that no one using the system, with their own money, would suggest), practitioners have offered definitions of “technology”. One of the better definitions was provided by Goldman Sachs in their amicus brief in Bilski, written with the folks at Accenture. Long story short, they defined “technology” as does the vast majority of science, engineering, and philosophy of science/engineering does – TECHNOLOGY IS APPLIED SCIENCE.

But attackers of business method patents can’t use this definition, because to do so is to explicitly make large domains of business patentable because they are applied methods from the various sciences. Attackers would rather lie about law, semantics, science, engineering and business, then accept definitions well accepted by those skilled in these arts, but has a consequence they don’t like – a priori patentability of business methods.” (emphasis added)

The “Oh Noes” G-g-g-grifters ‘cohorts'” meme aside, Malcolm once tried to use the “technology is applied science” line – that is until I showed him the direct and logical result of that use, as captured in Greg’s comment.

He ran away and has never returned to attempt to define “technological” in a non-circular manner since.

Malcolm, this is NOT about “fawning over Greg A.” as you dust-kickingly try to make it be. This is about your LACK of having the integrity of addressing (yes, addressing in an inte11ectually honest manner) these things, instead of your usual short script of blathering one-way street monologuing ad hominem.

“anon” The problem is that the Court wants things “fleshed out” by the lower courts, but will not provide enough guidance

The Court has provided more than enough guidance.

The problem is certain members of the patent bar resisting that guidance and pretending that it doesn’t exist.

But I bet you have no idea what I’m referring to! I highly highly recommend listening to the oral arguments when these 101 cases are argued before the Federal Circuit. The judges are practically begging for input from the attorneys but, with few exceptions, the attorneys just shoot blanks and provide mealy-mouthed answers about what they’re not saying.

My advice to practitioners is to start from first principles and work outwards. If you have a good foundation and use logic from that foundation, you’ll be in good shape. The worst approach is to assume that X or Y simply must be patentable (because some rich entitled people say so!) and then work backwards, ign0ring whatever gets in the way or creating a legal fiction to fill in the missing part. That’s the approach used by most of the hardcore detractors of subject matter eligibility jurisprudence and it’s never going to result in satisfaction (although it will allow some short-term skimming which is good enough for a lot of the players out there).